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Delegated Legislation

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Synopsis

I. Introduction.

II. Definitions.

III. Delegated legislation, whether a necessary evil?

IV. Historical Growth.

V. Reason for Growth.

(i) Insufficient Parliamentary Time.

(ii) Technicality.

(iii) Flexibility.

(iv) Experiment.

(v) Emergency.

(vi) Complexity of Modern Administration.

VI. Forms of Delegated Legislation.

(i) Titled based classification.

(ii) Discretion Based Classification.

(iii) Purpose Based Classification.

(iv) Authority Based Classification.

VII. Constitutionality of Delegated Legislation.

Narendra Kumar V/s. Union of India (1960)

D. S. Nakara v Union of India (1983)

Air India v Nergesh Meerza (1981)

C. B. Muthamma v Union of India (1979)

D.T.C. v Mazdoor Congress (1991)

Yeshwant Singh Kothari v State Bank of Indore (1993)

I. Introduction.

The executive performs various legislative and judicial functions along with its administrative functions. Statutes are incomplete without delegated legislation. Delegated legislations are supplementary to statutes.

II. Definitions.

According to Salmond, legislation is either supreme or subordinate. Whereas the former proceeds from sovereign or supreme power, the latter flows from an authority other than the sovereign power and is therefore depended for its existence and continuance on superior or supreme authority. According to C. K. Takwani, delegated legislation is a legislation made by a body or person other than the sovereign in Parliament by virtue of powers conferred by such sovereign under the statute. Thus, when the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organ is called delegated legislation.

According to Jain and Jain, the term delegated legislation is used in two senses:

(i) Exercised by a sub-ordinate agency of the legislative power delegated to it by the legislature.

(ii) The subsidiary rules themselves which are made by the sub-ordinate authority in pursuance of the power conferred on it by the legislature.

III. Delegated legislation, whether a necessary evil?

Delegation of legislative power in favor of the executive was not favored by the orthodox. It was considered to be an evil, even though a necessary evil.

Wade in his well known work stated:

Administrative legislation is traditionally looked upon as a necessary evil, and unfortunate but evitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice.

In today’s world it is not possible to revive the old theory i.e. only the legislature can perform the legislative functions.

According to C. K. Takwani it is better that we accept the doctrine of delegation of power not only as a necessary evil (Red Light Theory) but as a requirement of the day (Green Light Theory).

IV. Historical Growth.

The 20th Century witnessed the growth of delegated legislation in all legal systems of the world. In the past too, delegation of legislative power by legislature to the executive prevailed. There has been delegation of legislative functions ever since statutes came to be enacted by the Parliament. The statue of 1337 contained a clause which made it a felony to export wool, unless it was ordained by the King and his Counsel. In the 15th and 16th Centuries there was frequent use of Henry VIII Clause. Mutiny Act, 1717 conferred on crown power to legislate for the Army without the aid of Parliament. In the 19th Century, delegated legislation became more common and considerably increased due to social and economic reforms. In the 20th Century, output of delegated legislation by the executive is several times more than output of enactments by a competent legislature.

V. Reason for Growth.

(i) Insufficient Parliamentary Time. The laws that are required are so greater numbers that it is not possible for the legislator to discuss all the matters in detail. Thus, the legislator creates a general policy and empowers the executive to fill in the details. The executive issues necessary rules, regulations, bye-laws, etc.

(ii) Technicality.

The legislators being common people cannot be expected to create laws which require expert assistance. Therefore, the responsibility of making laws for technical matters is delegated.

(iii) Flexibility.

Legislative amendment is a slow process. By the process of delegated legislation, the executive can make laws expeditiously. Numerous statutes provide a removal of difficulty clause, empowering the administration to overcome difficulties by exercising delegated power. Henry VIII Clause confers wide powers on the Government.

(iv) Experiment.

With the help of delegated legislation, experience out of experiments can be applied by way of rules and regulations, for e.g., in road traffic.

(v) Emergency.

Quick action is required in cases of emergency. Delegated legislation can provide urgent solutions to meet the situation.

(vi) Complexity of Modern Administration.

The modern welfare society has given birth to the practice of delegated legislation which has evolved out of practical necessity and pragmatic needs.

VI. Forms of Delegated Legislation.

(i) Titled based classification.

Delegated legislation could be in the form of rules, regulations, bye-laws, notifications, schemes, orders, ordinances, directions, etc.

(ii) Discretion Based Classification.

Conditional or contingent legislation are types of discretion based classification. The power of discretion may be conferred upon the executive to bring a particular act into operation upon certain conditions.

(iii) Purpose Based Classification.

According to C.K. Takwani, executive can be empowered to fix an appointed day for the act to come into force, to supply details, to extend the provisions of the act to other areas, to include or to execute operation of the act to certain territories or persons or industries, commodities, and to suspend or to modify the provisions of the Act, etc.

(iv) Authority Based Classification.

The power of the executive to delegate further powers conferred on it to its sub-ordinate authority is known as sub-delegation.

VII. Constitutionality of Delegated Legislation.

According to C. K. Takwani, a parent Act or delegated statute may be constitutional and valid and delegated legislation maybe consistent with the parent Act, yet the delegation may be held invalid on the ground that it contravenes the provision of the constitution. It may seem paradoxical that a delegated legislature can be struck down on this ground because if the parent Act is constitutional and delegated legislation is consistent with the parent Act, how can the delegated legislation be ultra vires the constitution? It was precisely this argument which the Supreme Court was called upon to consider in.

Narendra Kumar V/s. Union of India (1960)

In Narendra Kumar, the validity of the non Ferrous Metal Control Order, 1958 issued under Section 3 of the Essential Commodities Act, 1955 was challenged as unconstitutional. The Petitioner had not challenged the validity of the parent Act. It was argued that if the enabling Act was not considered unconstitutional the rules made thereunder could not be held to be unconstitutional. Rejecting this extravagant argument, the Supreme Court held that even though a parent Act might not be unconstitutional, an order made thereunder (delegated legislation) can still be unconstitutional and can be challenged as violative of the provisions of the constitution.

D. S. Nakara v Union of India (1983)

The Supreme Court held that a Pension Scheme providing higher pension to a Government servant retiring before a particular date and lower pension to others retiring after such cut-off date was arbitrary, discriminatory and ultra vires. The classification does not stand the test of Article 14.

Air India v Nergesh Meerza (1981)

A regulation framed by Air India providing that services of an Air Hostess could be terminated if she became pregnant was held arbitrary, unreasonable and violative of Articles 14 and 15 of the Constitution.

C. B. Muthamma v Union of India (1979)

A provision in service rules enjoining a female employed to obtain permission of the Government before solemnizing marriage and denying right to get appointment on the ground that she was married was held bad.

D.T.C. v Mazdoor Congress (1991)

A Regulation conferring powers on the authority to terminate services of a permanent employee by giving him 3 months notice was held to be arbitrary and ultra vires of Article 14 of the Constitution.

Yeshwant Singh Kothari v State Bank of Indore (1993)

It is well settled that while considering constitutional validity or bias of delegated legislation one should start that presumption of the constitutional validity of the provisions and it will be for the property challenging the validity of sub-ordinate legislation to satisfy the Court that it is unconstitutional. Moreover, if two constructions are possible, one which favours constitutionality of law should be preferred over the other which would make it ultra vires.

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